Chevron Corp. v. Berlinger and the future of the journalists' privilege for documentary filmmakers.

AuthorIsler, Tom

INTRODUCTION I. FROM BRANZBURG TO BERLINGER A. Branzburg v. Hayes B. Second Circuit Jurisprudence Following Branzburg II. CHEVRON CORP. V. BERLINGER A. The District Court Orders Discovery B. The Second Circuit Affirms III. ON INDEPENDENCE AND OUTTAKES A. Factual Confusion About independence, Journalism, and Filmmaking B. Fishing for Precedent C. Overbroad Orders and Weakening the Relevance Requirement D. Impeachable Outtakes IV. CONSEQUENCES FOR FILMMAKERS A. Confidentiality Options B. Final Cut Approval C. Destruction of Outtakes D. A Iteration of Filmmaking Practices CONCLUSION INTRODUCTION

The documentary film Crude, directed by award-winning filmmaker Joseph Berlinger, (1) tells the story of a class action lawsuit brought by thousands of Ecuadorians against the oil company Chevron, alleging that the company's systematic contamination of a portion of the Amazon jungle increased the rates of cancer, leukemia, birth defects, and other health problems for the indigenous people of the region. (2) Berlinger and his crew spent three years filming but captured only a small portion of the ongoing fight between the Ecuadorians and Chevron. (3) By the time Berlinger's cameras arrived, the legal battle was already a dozen years old, and a title screen at the end of Crude predicts that the litigation could last another decade. (4) The film premiered at the 2009 Sundance Film Festival (5) and went on to earn dozens of nominations and awards from film festival juries and critics' organizations around the world. (6)

In 2010, Chevron and, separately, two of Chevron's lawyers who were facing criminal charges in Ecuador for falsifying documents, (7) moved to subpoena nearly six-hundred hours of raw footage, or "outtakes," that Berlinger did not include in the completed film. (8) Chevron sought to prove that the plaintiffs' lawyers exerted improper influence over judges and experts involved in the proceedings in Ecuador through ex parte communications, and it argued that Berlinger's footage contained evidence of this misconduct. (9) Berlinger attempted to quash the subpoenas on the ground that he was protected by the journalists' privilege.

The district court ordered Berlinger to turn over all of his outtakes (11)--the largest mandate to turn over outtakes ever ordered by a U.S. court. (12) In doing so, the court revealed its misunderstanding of outtakes and how they should be treated under the existing journalists' privilege doctrine. The Second Circuit's standard for obtaining nonconfidential material from journalists, set forth in Gonzales v. NBC, requires petitioners to prove that the material sought is "of likely relevance to a significant issue in the case" and "not reasonably obtainable from other available sources." (13) The district court in the Berlinger litigation, after assuming that this qualified privilege applies to independent documentary filmmakers, narrowed the protection of journalistic work product by collapsing the two-pronged Gonzales test into a general standard of "likely relevance" for outtakes, and lowered the bar for what constitutes relevance. (14) The Second Circuit narrowed (15) but nonetheless affirmed the order. (16) The Second Circuit further ruled that because Berlinger appeared to be subject to the influence of his filmmaking subjects, he lacked the editorial independence necessary to qualify for the journalists' privilege. (17)

This Comment argues that the courts' improper assumptions about outtakes and documentary filmmaking led to an inappropriate weakening of the journalists' privilege as applied to nonaction filmmakers and other noninstitutional media entities. While journalistic work product should not be protected in all cases, the courts' imprecise application of the relevant standard treats documentarians like second-class journalists. This imprecision also endangers the future production of independent, investigative documentaries, which warrant protection for the same reasons that courts embrace a qualified privilege for other kinds of journalism.

Part I traces the evolution of the journalists' privilege in the Second Circuit. Part II discusses the opinions in the Berlinger litigation. Part III argues that the Second Circuit's new "independence" test will result in courts discriminating against journalists not on account of their output but because of their motivations and associations. Part IV then considers several ways in which filmmakers might approach projects in this new legal landscape to better protect their footage and their subjects. Such approaches include signing agreements with subjects, offering subjects final cut approval, destroying unreleased footage after the film has been released, and altering fuming techniques.

Under the Second Circuit's weakened protections, filmmakers will not find any effective legal means of preventing discovery of their footage, short of altering their filmmaking practices or destroying unused footage--methods that impose their own costs and may affect the quantity and quality of documentaries that explore the justice system in action. The best way to meet the needs of the justice system while minimizing the impact on the production of documentaries is to apply the existing journalists' privilege doctrine properly. Once courts recognize and correct common misunderstandings about outtakes and video evidence, documentary filmmakers can be treated the same as other newsgatherers who serve the vital role of investigating and disseminating valuable information to the public.

  1. FROM BRANZBURG TO BERLINGER

    Today, thirty-seven states and the District of Columbia have shield laws that grant journalists either an absolute or qualified privilege concerning confidential sources; roughly two-thirds of these laws also protect journalists' work product, such as outtakes. (18) Twelve other states recognize either a constitutional or a common law privilege for reporters, at least in civil cases. (19) Most federal courts recognize that under a federal common law privilege, journalists need not disclose confidential sources. (20) But the Fifth and Seventh Circuits have rejected extending the privilege to nonconfidential journalistic work product, (21) and the Sixth Circuit rejects any type of federal journalists' privilege. (22) In addition, the Department of Justice has adopted its own guidelines limiting the circumstances in which prosecutors should subpoena journalists, regardless of the jurisdiction or controlling law. (28) Any proper discussion of the journalists' privilege, however, must begin with the Supreme Court's decision in Branzburg.

    1. Branzburg v. Hayes

      In the landmark 1972 Supreme Court case Branzburg v. Hayes, the Court declined to hold that reporters could avoid testifying before state or federal grand juries by invoking the First Amendment. (24) However, Justice White, writing for four other justices, (25) noted that the First Amendment might protect journalists who were the subject of bad-faith investigations or harassment by government officials for reasons unrelated to law enforcement. (26)

      Justice Powell, who joined Justice White's opinion, wrote separately to "emphasize .. . the limited nature of the Court's holding." (27) He also noted that a reporter is entitled to a First Amendment remedy if he is subject to the harassment of bad-faith investigations, or if the information he is asked to reveal bears "only a remote and tenuous relationship to the subject of the investigation, or if ... his testimony implicates confidential source relationships without a legitimate need of law enforcement." (28) Powell insisted that courts should balance the need for a free press against the general obligation to provide testimony in criminal cases on a case-by-case basis. (29)

      Following Branzburg, many commentators and courts accepted the argument that, by grouping Justice Powell with the four dissenting Justices who endorsed constitutional protections for journalists, a majority of the Justices had endorsed a limited journalists' privilege grounded in the First Amendment. (30) As a result, in general, the scope of the journalists' privilege expanded after Branzburg. (31) In McKevitt v. Pallasch, Judge Posner criticized this reading and the court decisions that embraced it. (32) He noted that Justice Powell concurred not only in the judgment but also in Justice White's opinion, which rendered it a legitimate majority opinion. (33) But as states adopted their own shield laws for journalists and the Department of Justice issued its own subpoena guidelines, Branzburg gradually became less of an interpretive problem for the courts. (34)

    2. Second Circuit Jurisprudence Following Branzburg

      Following Branzburg, the Second Circuit expanded protection for journalists, primarily to avoid the chilling effect that would follow if prosecutors were able to use journalists as "an investigative arm of the government." (35) The Second Circuit's first major post-Branzburg case concerned Alfred Balk, a journalist and journalism professor who refused to identify a source for a Saturday Evening Post article he wrote about racially discriminatory real estate practices in Chicago. (36) The civil rights class action plaintiffs sought the identity of Balk's source as evidence of discriminatory practices known as "blockbusting." (37) Balk, who had promised his source anonymity, argued that the First Amendment granted him a privilege against testifying, and the district court, deciding the case prior to Branzburg, ruled that Balk could not be compelled to reveal the identity of his source. (38) Judge Bonsai of the Southern District of New York concluded that the plaintiffs had shown neither "that all other available sources [had] been exhausted" nor that disclosure was "essential to the protection of the public interest." (39)

      The Second Circuit, ruling after Branzburg, affirmed the district court's decision in holding that the First Amendment protects...

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